September 18, 2013

Nine-Year Dispute Over Drug Lord Documents Presses On

Nine years ago, a Washington think tank filed a Freedom of Information Act for CIA records about notorious Colombian drug lord Pablo Escobar. Unsatisfied with the CIA's response, the group sued in 2006. Today, a federal judge expressed his impatience with the fact that the case was still pending.

A lawyer for the Institute for Policy Studies today told Senior Judge Royce Lamberth of U.S. District Court for the District of Columbia that his client was concerned about the agency's progress. Assistant U.S. Attorney Fred Haynes said the CIA expected to finish processing a large number of documents by the end of January and would be working with other agencies to review records that originated in those agencies. Lamberth said he wanted to set specific deadlines for the reviews by other agencies.

"I guarantee [the case is] going to finish in my lifetime," Lamberth said. "I've never seen such a strange case, that an agency can drag its feet this long." It was the second time in two weeks that Lamberth, who recently turned 70, referenced his mortality in the context of protracted litigation involving the government. Last week, Reuters reported Lamberth said he wanted to conclude the government's criminal case against private security guards accused of killing Iraqi civilians "while I'm still alive."

The Institute for Policy Studies filed its request for documents with the CIA in 2004. The think tank sought records on Escobar and a group involved in the manhunt that ended with Escobar's death in 1993. The group, a progressive think tank that focuses on social justice and environmental issues, said the documents would help the public better understand U.S. foreign policy.

After the institute complained that the CIA's document search was incomplete, Lamberth ordered the agency in August 2012 to do additional searches. In December, Lamberth rejected the agency's proposed five-year timeline to complete the searches and told the government to move more quickly.

Today, Haynes said the CIA expected to finish processing most of its records by the end of January. The agency would have to refer certain documents—those that originated from other agencies—to those agencies to review, Haynes said. The other agencies would determine whether certain information needed to be withheld. Lamberth set a 60-day timeframe once those documents were sent for review.

Lamberth said he would weigh whether the CIA had to search its "operational" files as part of the institute's request. Operational files, which are created in the course of intelligence operations, are usually exempt from Freedom of Information Act requests, but there can be exceptions.

Brian Gaffney of San Francisco's Lippe Gaffney Wagner, representing the Institute for Policy Studies, told Lamberth he was concerned the CIA was mislabeling certain records as "operational" to avoid including them in searches. Gaffney, who participated in the hearing by phone, also said he didn't want the CIA to be "off the hook" once it referred other-agency documents for review outside of the CIA.

Washington solo practitioner Andrea Ferster, the D.C. Bar president, is local counsel for the institute. She was also in court for today's hearing.